Conklin v. Cohen

• Decision Date: 27 June 1973
• Docket Number: No. 42536,42536
• Citation: 287 So.2d 56
• Parties: Joan CONKLIN, as widow of and as Administratrix of the Estate of the Deceased, Edward Donald Conklin, Petitioner, v. Arthur COHEN et al., Respondents.
• Court: Florida Supreme Court

Page 56

287 So.2d 56

Joan CONKLIN, as widow of and as Administratrix of the Estate of the Deceased, Edward Donald Conklin, Petitioner, v. Arthur COHEN et al., Respondents.

No. 42536.

Supreme Court of Florida.

June 27, 1973.

As Modified on Denial of Rehearing Dec. 5, 1973.

Donald Feldman of Feldman & Abramson, Miami, for petitioner.

Steven R. Berger, of Carey, Dwyer, Austin, Cole & Selwood, Miami, for respondent, Morris Lapidus, and Richard M. Gale Preddy, Haddad, Kutner & Hardy, for respondents, Arthur Cohen, et al.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 262 So.2d 717. Our jurisdiction is based on conflict between the decision sought to be reviewed and Jones v. Florida Power Corp., ¹ Smith v. Ussery, ² State ex rel. Auchter Co. v. Luckie, ³ and Geer v. Bennett. ⁴

The facts of the case, as recited by the District Court, are as follows:

'From the record on appeal, it appears that one Edward Donald Conklin, husband of the plaintiff Joan Conklin, was employed as a workman on a building being erected in the City of Miami Beach, known as Arlen Beach Apartments when a scaffolding broke and he plunged 17 stories to his death. As a result thereof, the plaintiff brought an action against the appellees, Cohen, Levine, Rose, and Schmincke, d/b/a Arlen Beach Apartments and/or Arlen Two Company and/or Normal of Florida, Inc., as owners of the building; Morris Lapidus, the architect; Oboler and Clark, Inc., the engineering firm; the City of Miami Beach; and Zurich Insurance Company, the workmen's compensation carrier for the contractor and subcontractor. The complaint basically alleged each of the appellees negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed. It also alleged that the deceased was a third party beneficiary of certain agreements between some of the defendants. The appellees moved to dismiss the complaint for failure to state a cause of action and, after hearing thereon, the trial court entered the order of dismissal with prejudice. This appeal ensued. We affirm.' ⁵

Based upon the foregoing facts, the District Court held that:

'As to the owners, from the allegations of the complaint they were acting in concert with the general contractor and, therefore, they were entitled to the benefit of the immunity provided by § 440.11, Fla.Stat., F.S.A. As to the architect, the contract establishing his relationship with the project was not attached to the complaint. But, it is apparent that he would be entitled to the benefits of the decision in Allen v. Employers Service Corporation, Fla.App.1971, 243 So.2d 454. As to the engineers, their contract was with the general contractor and they were likewise entitled to the benefits of the decision in Allen v. Employers Service Corporation, supra. Further, it is apparent that they had no duty under their express contract to make safety inspections. As to the City of Miami Beach, it was conceded that there was no liability as to it, based on the decision of Modlin v. Washington Avenue Food Center, Inc., Fla.App.1965, 178 So.2d 596, affirmed Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70. As to the compensation carrier, having discharged its responsibility under the workmen's compensation act as a result of the death of the deceased, it was discharged from liability. Allen v. Employers Service Corporation, supra. " ⁶

We hereby reverse the District Court of Appeal, Third District, for reasons which will be set out below. Recognizing the substantial amount of confusion which still exists regarding the Workmen's Compensation Law and third-party tort suits, we will endeavor to provide some additional guidelines for those who follow.

I. OWNERS

The District Court affirmed the dismissal, with prejudice, of the complaint against the owners because, 'from the allegations of the complaint they were acting in concert with the general contractor and, therefore, they were entitled to the benefit of the immunity provided by § 440.11, Fla.Stat.' An examination of the record convinces us that the District Court's conclusion clearly violates the principles of Jones v. Florida Power Corp., Supra, Smith v. Ussery, Supra, and their progeny, in that the District Court, in its consideration of whether or not the owners were immune from suit, relied upon a clearly irrelevant factor.

In the landmark case of Jones v. Florida Power Corp., Supra, the then Mr. Chief Justice Roberts succinctly stated the basic formula for determining whether one is immune from third-part tort suit, pursuant to the provisions of Section 40.11, Florida Statutes, 1971, F.S.A. This basic formula was re-iterated and re-emphasized some eighteen years later by the present Court in our recent opinion in Smith v. Ussery, Supra:

'. . . The question is whether the Workmen's Compensation Act imposed upon the Corporation the duty, as an 'employer' and 'contractor' to secure compensation for such employees. It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation--no more and no less.' ⁷

By granting the owners immunity from third-party tort suit, merely because 'they were acting in concert with the general contractor,' the District Court erroneously expanded the single exception to the general rule announced in Jones v. Florida Power Corp., Supra--that situation where the owners could also be considered 'contractors' or 'statutory employers.' As then Chief Justice Roberts carefully explained, and, again, as the present Court reiterated and re-emphasized in Smith v. Ussery, Supra:

'. . . Nor can the Corporation be considered a 'contractor,' (and thus the 'statutory' employer of Burns' and Grinnell's employees) within the maening of Section 440.10 quoted supra, since the clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he subltes to another. To 'sublet' means to 'underlet', Webster's New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so 'subletting' is primarily obligated. The Corporation, under the facts here present, had no primary obligation under a contract which it was passing on to another. It was not then, a 'contractor' within the meaning of the Act.' ⁸

Viewing the record before us, it is clear that the owners were under no duty to secure compensation for petitioner. Furthermore, it is clear that the owners did not qualify as 'contractors' or 'statutory employers,' within the foregoing definitions thereof. Therefore, the dismissal, with prejudice, of petitioner's complaint against the owners was erroneous, and the District Court's affirmance of that dismissal must be and hereby is reversed.

As we noted in State ex rel. Auchter Co. v. Luckie, Supra:

'(A)n employee of an independent contractor may maintain against an owner an action at law for damages suffered as a result of the latter's negligence.' ⁹

The phrase 'as a result of the latter's negligence,' above means that the owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the statute, one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established. The allegations of petitioner's complaint against the owners Sub judice, in light of the foregoing discussion of the phrase, 'as a result of the . . . (owner's) negligence,' clearly stated a cause of action against the owners, and, as clearly, were sufficient to withstand the owners' Motion to Dismiss.

II. ARCHITECT

The District Court affirmed the dismissal, with prejudice, of the complaint against the architect because, 'the contract establishing his relationship with the project was not attached to the complaint. But, it is apparent that he would be entitled to the benefits of the decision in Allen v. Employers Service Corporation, Fla.App.1971, 243 So.2d 454.' Contrary to the views of the District Court, however, it is not so apparent that the architect is entitled to the benefit of said decision. In Allen v. Employers Service Corporation, ¹⁰ the District Court of Appeal, Second District, held that a service company, which had agreed to furnish the employer with inspection and advisory services relating to the safety of its employees, was immune from being sued as a third-party tort-feasor by an injured employee covered under the workmen's compensation program. Thus, because the service company had Contracted with and agreed to work for the employer, the service company came under the employer's umbrella of immunity from third-party tort suit. Conversely, it is apparent that had the service company been working as an independent contractor, it would not have been entitled to such immunity.

As the District Court correctly noted, the contract establishing the architect's relationship with the project was not attached to the complaint. However, from the allegations in the complaint, it is clear that the plaintiff assumed that the architect Contracted with and agreed to work for the owner, not the employer, and was thus not eligible for Allen-type immunity from third-party tort suit. While the contract is a basis upon which the action is based, and is therefore required to be attached to or...